tions already effected by force of the antecedent act, have any rational force. The situation would be this: The village of South Orange had acquired property, and was vested with the right to use that property. For the legislature, therefore, to say to such village, "You may acquire that property, and may use it," would seem to be utterly futile. And it is further to be observed that, in order to validate this title, a purpose must in some form be expressed in it to circumscribe the right to use the lands theretofore acquired. Most assuredly an intention to diminish such right in the smallest degree has not been here expressed. The result is that the act of 1892 is not to be given a retrospective effect, and accordingly the judgment of the supreme court must be reversed.

The other points presented in the brief of counsel of the defendant in error have been examined and considered, but we do not find any of them that seem to us to require discussion on the part of the court.

WORTH v. NEWLIN. (Court of Chancery of New Jersey. Dec. 11, 1896.)

MORTGAGE ON HOTEL-SALE OF REALTY AND PERSONALTY TOGETHER-CONFIRMATIONINSPECTION OF PROPERTY.

1. Confirmation of a foreclosure sale of hotel property will not be denied on the ground that immediately before the sale a watchman in charge of the premises had refused to allow an inspection thereof by a prospective bidder until the sheriff arrived, where it appears that the watchman was not informed of the intent to bid, that no request for an inspection was made after the sheriff arrived, and that the sheriff was willing to allow an inspection, and did nothing to prevent it.

2. Confirmation of a foreclosure sale of an hotel under a mortgage drawn up as a real-estate mortgage, but including the hotel personalty, will not be denied on the ground that real estate and personalty were sold together for a lump sum, where it appears that there were no conflicting liens on the personalty, that the property had previously been sold on foreclosure as an entirety, and that such was the custom in the neighborhood, in the absence of a satisfactory showing that the price realized was less than would have been obtained by separate sales.

Bill by Edward Worth against Bella Newlin to foreclose a mortgage. Heard on exceptions to confirmation of the sale. Overruled.

Howard M. Cooper, for complainant. Lindley M. Garrison, for defendant.

GREY, V. C. This matter is presented upon exceptions filed against the confirmation of a foreclosure sale under section 45, p. 2111, Gen. St. 1895. The sale was made by the sheriff of Cape May county, on October 19, 1896, pursuant to the command of a writ of fieri facias issued upon decree made in this foreclosure suit for the sale of an hotel and lot of land, and also its furniture. The execution directed the sale of a lot of land at

Cape May having an hotel upon it, and also of a lot of furniture, the equipment of the hotel, described in the proofs as "The Chalfonte." The execution did not specify whether the land should be sold separately from the personal property or not, nor did it direct a sale of either in parcels. It described the real estate and the personal property in the same terms by which they were described by the mortgagor in the complainant's mortgage. On the day of the sale, on October 19, 1896, persons who attended with a purpose to become bidders applied to a watchman, whom the sheriff had in charge, for leave to go into the hotel, and see the interior. The watchman declined to permit this until the sheriff should come. When the sheriff did come upon the premises to make the sale, no further application was made to him for such leave by any one. The sheriff, by direction of the complainant's solicitor, and without request from any one to sell separately, put up both the real estate, being the hotel property, and also the personal property, being the furniture and equipment of the hotel, to be bid for and sold as an entirety, at single bids. At and previous to the sale no invitation was extended by the sheriff to the bidders to inspect either the real or personal property, and no application was made to him asking such inspection (save as above stated to the watchman), nor was there any declaration made by the sheriff at the sale, which was made on the porch of the hotel, that such examination would not be allowed. The sheriff, in his affidavit, swears that he did not know at the time of the sale that any one had desired to go through the premises; that, if he had been asked, he would have granted an inspection. There was a conflict of evidence as to whether a sale of hotel property was in that locality usually made of an hotel and its equipment as an entirety or in separate lots, three witnesses swearing that in Cape May they are usually sold together, and one that they are sold separately; and it was not disputed that the mortgaged premises had been twice sold, hotel and furniture as a whole, the last time to the mortgagor, through whom the exceptant claims. The affidavits showed that the property was sold by the sheriff for $4,000, subject to prior liens of a first mortgage for $12,000, a second mortgage for $4,000, and taxes for $372.60. The property is taxed at an assessed valuation of $16,200. So that the aggregate amount bid at the sale now under consideration and the prior liens exceeds the amount of assessed value by $4,172.60. There was due on complainant's decree the sum of $5,297.50, and the taxed costs of $72.21, with the sheriff's costs to be added. The sheriff, after a competition, sold the hotel and its furniture, as an entirety, to the complainant, who was the highest bidder, for the sum of $4,000, subject to prior liens as stated. The complainant, notwithstanding he has become the purchaser, proffers himself to be now

ready to assign his bid to the exceptant, or to any one else, who will pay him the amount due him and the costs incurred. Neither the exceptant nor any of the persons who claimed they would have been bidders, have indicated any desire to take the complainant's bid upon these terms. The complainant's solicitor testifies that the property would have been bid up by him for the complainant to the amount of $5,900. The grounds upon which the exceptant opposes confirmation of the sale are: First, that permission to go through and inspect the property was asked by an intending bidder, and was refused by the sheriff's watchman; second, the real property (the hotel) and the personal (its equipment) were sold together, instead of separately; and, third, that the price realized was less than would have been realized if the sale had been in the above respects properly conducted.

As to the refusal of inspection, the only application was made to the sheriff's watchman, in charge of the premises, on the day of and just previous to the sale. He declined to permit the parties applying to go over the premises until the sheriff should come. They were not shown to have been known to him personally, or to have declared to him that they were intending bidders. These persons remained, and attended the sale. They did not tell the sheriff, when he did come, that they wished to inspect the premises or property, nor did he know they had previously applied for leave to do so. They did not state to him that they would be bidders if the personalty were sold separately, nor ask that it should be so sold. While the sheriff did not, in terms, invite examination, he was making his sale on the premises, and any intending bidder who desired further examination to enable him to bid more intelligently could readily have gone over the premises at the time of the sale, or have asked the sheriff for leave to inspect more fully, especially when he had been previously told that it was the sheriff's arrival which would give him the opportunity. The sheriff was shown to have directed that no one should be admitted to the hotel except by his orders. This was no denial of inspection, but only the requirement of proper permission. If a possible bidder desired to see the property, he should have applied to the sheriff, stating his wish to examine the property before the sale, as a possible bidder. No such course was pursued. Nothing was shown to have been done by the sheriff preventing investigation, or which indicated a purpose on his part to deny inspection if further examination of the property had been asked of him. At the time of the sale made on the premises the exposure seems to have been sufficient to have induced competitive bids, and, if those who did not bid because they had not seen the property had not sufficient interest to ask the sheriff for further opportunity to examine it before he made the sale, I cannot believe that their attendance would have been of any substantial benefit, had fuller inspection been actually had. I do not

think the objections to the sale upon the alleged refusal to permit inspection have been sustained.

The second objection is that the real estate and personal property were sold together, and not separately. The property consisted of an hotel and its furniture and equipment. The exceptant is one of the mortgagors. In the mortgage which she made she described the lands mortgaged, and added this clause as to the personal property: "And also all the furniture, carpets, bedding, household goods, kitchen utensils, crockery, china, glass, wooden, silver, iron, and tin ware, and other household furnishing goods now in or which may hereafter be put in the hotel on the said premises." The mortgage was not executed as a chattel mortgage, as if the parties considered the furniture separately from the hotel, but as a real-estate mortgage only, naming the furniture as if it were appurtenant to the hotel. There were no judgments entered or other liens upon the personal property. The complainant's mortgage was the only lien upon this personal property. The furniture and utensils of the hotel were treated by the parties as if they considered them to be part of the hotel equipment. The writ directed a sale of the property mortgaged in the very words which the exceptant had herself used in describing it in the mortgage. The sheriff swears without contradiction "that no request was made to deponent [the sheriff] before or at the sale to sell said hotel and said furniture separately." The property had, at the last two sales made of it, been sold real and personal as an entirety. The weight of the evidence is that it is customary in Cape May to sell hotels with their furniture as an entirety. In view of these facts, and of the sheriff's opinion that the property would bring a better price when sold as a whole than when sold separately, I do not think the sheriff exceeded his power under the writ, nor that he used his discretionary authority harshly or oppressively, in selling the hotel and its equipment as an entirety.

The third criticism of the sale is based on the claim that the price realized was less than would have been obtained by a different mode of conducting the sale. Objections of this sort rest to a considerable extent upon opinion, unless there is an actual offer on the part of some person to guaranty the payment of a higher price, at a resale. This is the course usually taken, but in this case no proposition of that character has been made, though several persons were examined as witnesses who were either actual bidders or intending bidders. But I am not satisfied that it is at all certain that any higher price would be realized at another sale. That the property actually has any higher value than the price bid at the sale has not been shown. There was an offer to prove the value of the mortgaged property, by showing that a year before the time of the sheriff's sale it had been exchanged for other property in West Chester, Pa., and to prove that this other property had a very high value, and also to prove that the complainant had placed a high

value upon this other property for which the mortgaged premises had been exchanged. This was objected to, and the testimony was rejected as too remote and uncertain to be accepted as evidence of value of the mortgaged premises at the time of the sheriff's sale. There was no proof of a definite character to show that the property would have produced more if sold separately. It was alleged that, as buyers had been refused examination, they could not say what they might have been willing to pay. I have heretofore shown that inspection was not denied. It was only postponed until the sheriff's arrival, and not then sought for by any one. But ability to prove the value of public hotel furniture does not rest solely with intending bidders. The hotel was located at a public seaside resort, and the persons who could have proved the value of the hotel and of the furniture, if it were desired to do so, were necessarily many. The sheriff testifies that in his opinion the hotel and furniture was "worth more, and would sell for more, if sold together as a whole, than if sold separately." I think it may well be claimed that a furnished hotel, mortgaged as such, would produce at a public sale a higher price if sold as an entirety than would result from a sale of the hotel at one bid, and its furniture separately, either as a whole or in parcels. Upon the whole matter, as submitted to me, I think the exceptant has failed to show sufficient cause to justify a refusal to confirm the sale. I shall therefore advise that an order be made confirming the sale.

WILLS-CONSTRUCTION AFTER-ACQUIRED PROPERTY-CONFLICTING CLAUSES.

1. Gen. St. § 537, providing that "every devise purporting to convey all the real estate of the testator shall be construed to convey all the real estate belonging to him at the time of his decease, unless it shall clearly appear by his will that he intended otherwise," does not apply to a devise which recites, "From and after the decease of my wife, I give and bequeath to my brother the residue or remainder of my real estate, being a lot of land adjoining his own," so as to cause it to include land acquired by testator, after the making of the will, which did not adjoin the brother's land or the lot mentioned in the devise.

2. Where the brother survived the testator, the death of such brother before the death of the life tenant will not divest the estate, but it will pass in fee simple to his devisee.

3. By section 6 of his will testator gave to his wife absolutely one-half of all his personal property not afterwards disposed of in his will: and by section 7 he gave to his said wife the use during her natural life "of all the residue of my estate, real, personal, or mixed, of which I shall die seised and possessed," not thereafter disposed of by the will. In section 9 testator provided, "I also give and bequeath to my daughter L. the one-half of the residue or remainder of my personal estate," to be hers absolutely; and in section 13 he provided what disposition should be made of the "residue and remainder" of his personal estate. Held that, after the death of testator's wife, the daughter L. took, absolutely, the per

sonal property in which the wife had had a life estate, and that, therefore, nothing passed under the thirteenth section.

Case reserved from superior court, New London county; Robinson, Judge.

Action between Richard A. Wheeler, administrator of the estate of George S. Brewster, deceased, and Harriet L. Brewster and others, to obtain a construction of deceased'swill. Heard on a case reserved by the superior court.

Hadlai A. Hull and William F. M. Rogers, for Harriet L. Brewster et al. Charles H. Briscoe and John L. Hunter, for Minnie L. Leonard.

FENN, J. This is a case reserved, claiming an adjudication as to the construction and effect of certain sections in the last will of George S. Brewster, of Stonington, in this state. The will was executed in 1873, and the testator died in 1882. Seven questions are propounded, the first three of which relate to section 12 of said will, which is in these words: "From and after the decease of my precious, dearly-beloved wife, Mary Lockwood, I give and bequeath to my dear brother, William E., the residue or remainder of my real estate, being a lot of land adjoining his own." At the time the will was made the testator owned several pieces of real estate. The use or most of these he gave to his wife for life, and all of them he disposed of in fee, except the lot of land, valued at $600, adjoining his brother's land, as stated in said section 12. After making said will the testator purchased, and owned at the time of his death, premises known as the "Lewis House," valued at $1,500. These premises did not join the land of the testator's brother, William E., or the lot of land mentioned in section 12. The testator's wite, Mary Lockwood, died in December, 1894. The brother, William E., died previously, in January, 1893, leaving a widow, Harriet L. Brewster, who, under the will of her husband, is the sole devisee and legatee of all his estate. three questions above referred to are: What part or portion of the real estate of the said George S. Brewster was covered by section 12 of his said will? or, in other words, whether it included the sald 'Lewis Place." (2) Whether said devise in said section 12 became vested by said William's surviving the testator, and whether his demise before the death of the life tenant, Mary L. Brewster, divested him of his estate in said land. Whether the land mentioned in section 12 of said George Brewster's will passed to the devisee under the will of William Brewster."

The

“(1)

(3)

Counsel, in support of the contention that section 12 "included the said Lewis Place," rely upon the language of the statute, now Gen. St. § 537, and to the construction given to that statute in Dickerson's Appeal, 55 Conn. 223, 10 Atl. 194, and 15 Atl. 99. But we fail to see how much aid to their claim

is derived from these sources. The statute provides that "every devise, purporting to convey all the real estate of the testator, shall be construed to convey all the real estate belonging to him at the time of his decease, unless it shall clearly appear by his will that he intended otherwise." The will thus speaks as to real property, as it did at common law as to personal, from the death of the testator. But the question remains, does the devise purport to convey all the real estate of the testator? In Dickerson's Appeal, supra, the testatrix made a devise of all her real estate in the town of Westport to one person, and the remainder of all her property, real and personal, to others. She then owned one piece of real estate in said town. She subsequently acquired another piece, which she owned at the time of her death. The question was whether the last piece passed under the specific devise. This court held that it did. But this was on the ground, as distinctly stated, that "the will literally meets the requirement of the statute that it shall be a devise purporting to be a devise of all the real estate of the testatrix," and that therefore the statute was applicable in determining whether apt words in all their parts should be construed as relating to what, at the time of the testator's death, answered to the description given. In the case before us the testator, in making this twelfth section of his will, knew that he had disposed of all his other real estate, except the minor item, the lot adjoining his brother's, and even of that he had given to his wife the use for life. He, therefore, as we think, used the words "the residue or remainder of my real estate," as he used the other words, "being a lot of land adjoining his own," merely as descriptive of this particular land. He knew where the land was situated. He knew, also, that it was the only land he then had which he had not disposed of by other provisions. He stated or referred to both facts, and with the same purpose of description. If it be said that the devises as a whole purported "to convey all the real estate of the testator," this is true. But these devises were not as a whole, or mainly, to the brother, and do not purport to convey it to him. Even if the intendment which is sometimes, perhaps too often, said to exist against holding a man to be intestate as to a portion of his property, should ever prevail against the contrary intendments, in favor of an heir, not to be defeated of his statutory and distributive rights unless by apt words, it will not avail here; for, granting that the testator intended to convey by his will all the property, real and personal, which he owned at the time of his decease, and that he has failed to do so as to this after-acquired Lewis property, unless it passes under this clause, which seems to us a most liberal concession, it still remains evident to our minds that he intended this devisee to have only this particularly described and specified lot.

v.36A.no.1-3

The will in question is too long to justify its recital in full here. Nor is it necessary. It is most peculiar in many of its expressions and provisions. But, in reference to the disposition of the real estate, the condition of mind of the testator at the time of the execution appears to us to be obvious. He fully understood the items which it included, and the disposition he wished to make of each of them. The contingency that such items might, at the time of his death, be varied, by sale or purchase, did not enter his contemplation. His real language is entirely equivalent in effect to what it would have been if he had said: "I have four pieces of real estate [describing and numbering each]. I dispose of them as follows: No. 1 to A.; No. 2 to B.; No. 3 to C.; the remaining piece to D." Now, at the time of his death, he had all these, and another piece, No. 5. How can this pass to D.? It is true that it will not pass to either A., B., or C. True, also, that if it does not pass to D., it will be intestate. But the testator has not willed it to D. Instead of calling it the "fourth," he did style it, in effect, his "remaining" land. But we think that the latter word was used only as the equivalent of the former, and that to give it any other construction would be to make a will for the testator which he neither made nor intended to make for himself. This cannot be. A strong light is thrown on the meaning of the twelfth section by the language which immediately follows it in the thirteenth. In that he proceeds to dispose of "the residue or remainder of my personal estate of which I shall die seised and possessed, or to which I shall be entitled at the time of my decease." The express reference here to after-acquired personal estate is a decided indication that he did not, by the terms used in the preceding section, intend to devise afteracquired real estate. Had the will been drawn by a lawyer, it might be argued that the residuary disposition in the twelfth section was shortened, in view of the provisions of Gen. St. § 537; but it is evident that it was wholly the work of the testator himself. If that statute be again invoked in opposition to these views, the answer may be, either that, if the will as a whole shall be taken as a devise, within the meaning of the statute, that it purports to convey all the real estate of the testator, and must be construed to convey all that belonged to him at the time of his decease,-such construction is inoperative, since, while it is held that it conveys all, it cannot be known to whom such conveyance is made; or the answer may be that such construction should not be made at all, because it clearly appears by the will that the testator intended otherwise. Our conclusion is that the Lewis Place was not covered or included under the provisions of section 12. But that the lot of land described in said section became vested by said William's surviving the testator, and that his death before that of the life tenant did not divest him

of his estate, but that it passed, as a vested estate in fee simple, to the devisee under his will, appears too plain to require discussion or the statement of reasons. Indeed, this was conceded in the hearing before us, and no claim to the contrary made.

In

The next question presented is: "(4) What construction should be put upon sections 6, 9, and 13 of said George S. Brewster's will? and whether, after satisfying the provisions of sections 6 and 9 of said will, any property remained to pass, under said section 13, to the persons named therein." By the sixth section of the will the testator gave to his wife, absolutely, one-half of all his personal property not afterwards disposed of in his will. By the seventh section he gave to his said wife the use, improvement, and income, for and during her natural life, "of all the residue of my estate, real, personal, or mixed, of which I shall die seised and possessed," not thereafter disposed of in his will. the ninth section, after other gifts to take effect after the decease of the testator's wife, he said, "I also give and bequeath to my daughter, Minnie Lockwood, the one-half of the residue or remainder of my personal estate," to be hers absolutely. In the thirteenth section he provided what disposition should be made of the "residue and remainder" of his personal estate. The question presented, therefore, amounts to this: The testator having given his wife one-half of his personal estate absolutely, and the life use of the other half, should the absolute gift to Minnie Lockwood be construed to include the entire personal property, of which the wife had the life use, or only half of it? If the former construction be adopted, section 13 becomes inoperative, as nothing remains to pass under its provisions. But, notwithstanding such result would follow, we have reached the conclusion that this is the proper construction to be given to the will, and that it effectuates the testator's true intent. there are other sections of the will than those above referred to, which contain bequests of certain articles or items of personal property, the bequest to the wife in section 6 is, in fact, of one-half of the residue of such property. The devise and bequest in section 7 is of the other half for life. The language in section 9, "of the one-half of the residue and remainder of my personal estate," limited to take effect after the decease of the wife, is in entirely apt terms to include and convey this latter half. In the thirteenth section no suggestion is made that the gifts there provided for are not to take effect until after the death of the testator's wife. Such statement is made in several other sections of the will,-in every place where relevant and proper. We think that the testator meant that the personal property of which the wife was given only the use for life should, at her decease, go and belong to Minnie Lockwood.

Since

This conclusion disposes of the fifth ques

tion, "What disposition shall be made of the shares named in section 13, not bequeathed or disposed of?" No effect can be given to such section. It also disposes of the sixth question, which relates to the construction of section 16 of the will, providing what shall be done in case of the decease of one of the legatees named in section 13; also of question 7, practically relating to the same matter. Counsel did not treat the question as to the construction to be put upon the ninth clause as involving any inquiry concerning the effect upon its provisions of the former statute of perpetuities, and we therefore have given that matter no consideration.

The superior court is advised: (1) The "Lewis Place" is not covered by or included in the provisions of section 12 of said will, but only the lot of land adjoining that of the devisee. Said devise became vested by said devisee surviving the testator, and was not divested by his demise before the life tenant. Being vested in said devisee, William Brewsster, it passed to the devisee under his will. (2) Sections 6, 9, and 13 of the will in question should be so construed as to give Minnie Lockwood, absolutely, after the death of the testator's wife, all the personal property of which she, the testator's wife, was given the use for her life. Nothing passed under section 13. The other judges concurred.

DENNIS v. DENNIS.

(Supreme Court of Errors of Connecticut. June 25, 1896.)

DIVORCE HABITUAL INTEMPERANCE-WHAT CON

STITUTES-ADULTERY-CONNIVANCE
-EVIDENCE.

1. The fact that a husband becomes intoxicated about once in three weeks, during the evening, to such an extent that the next morning he does not go, as usual, to the store where he is employed, does not warrant granting the wife a divorce on the ground of habitual intemperance; it not appearing that such habit has occasioned any loss of position to the husband, or that it has been so gross or so long continued as to have produced want or suffering in his family.

2. Evidence that plaintiff, suspecting her husband of infidelity, and being desirous of obtaining a divorce, gave her attorneys full authority to employ detectives for the purpose of procuring the necessary evidence; that, under this authority, detectives were hired to watch the husband, and a lewd woman employed to lure him into an act of adultery; and that, through information furnished by the male detectives, plaintiff was enabled to confront her husband in a compromising situation with the woman so employed,-is sufficient to warrant an inference of connivance on plaintiff's part which will bar her right to a divorce, though she may not have expressly directed the employment of such woman.

Appeal from superior court, New London county; Prentice, Judge.

Action by Louisa J. Dennis against Elias M. Dennis for divorce. From a judgment for defendant, plaintiff appeals. Affirmed.

The court below made the following finding of facts: "(1) The plaintiff and defendant intermarried February 4, 1890, and have